Citation Nr: 21002297 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 11-14 682 DATE: January 13, 2021 ORDER Service connection for a bilateral eye disability, claimed as bilateral eye scratches with residual vision problems, is denied. Service connection for residuals of a traumatic brain injury (TBI) is denied. REMANDED Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right and left knee disabilities, is remanded. FINDINGS OF FACT 1. The evidence demonstrates that none of the Veteran’s current eye disabilities were incurred in or caused by service. 2. The Veteran is not shown to have any residuals of a TBI. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for an eye disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for an award of service connection for residuals of a TBI have not been met. 38 U.S.C. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1971 to June 1972. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2010 and January 2011 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. In November 2014, the Veteran testified at a Board video-conference hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the record. In November 2018, the Board wrote the Veteran to inform her that the Veterans Law Judge who conducted the hearing in November 2014 was no longer employed at the Board. The Veteran was offered the opportunity to testify at another Board hearing. She was notified that if she did not respond within 30 days, the Board would assume that she did not wish to have another hearing. No response has been received. This case was previously before the Board in January 2015, August 2016, and February 2019. In January 2015, the Board remanded the issues presently on appeal to the agency of original jurisdiction (AOJ) for additional development. In August 2016, the Board denied the claims. The Veteran appealed the Board’s August 2016 decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it denied service connection for the disabilities presently on appeal and remanding those matters for readjudication. In February 2019, the Board again remanded the claims for additional development. In its February 2019 remand, the Board directed the AOJ to obtain updated VA treatment records and to afford the Veteran new VA examinations as to each of the disabilities at issue. The Board finds that the AOJ has substantially complied with the remand directives regarding records development and VA examinations for the claimed bilateral eye disability and residuals of a TBI. However, it did not substantially comply with the remand directives regarding a VA examination for the lumbar spine; accordingly, as set out below, another remand of that issue is required. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time she files her claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The term “disability” as used for VA purposes contemplates functional impairment resulting in loss of earning capacity. See 38 C.F.R. § 4.1; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff’d sub nom., Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran’s present condition (e.g., whether the Veteran’s present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Service connection for a bilateral eye disability, claimed as bilateral eye scratches with residual vision problems The Veteran seeks to establish service connection for a bilateral eye disability, claimed as bilateral eye scratches with residual vision problems, as incurred in or caused by service. Specifically, she testified at her November 2014 hearing that she got seeds in her eyes during a training exercise in service, and that doctors told her that she had bilateral eye scratches and would probably end up with eye trouble. She also contended in her October 2013 substantive appeal that her eye conditions were due to falls while in the military. At the outset, the Board notes that January 1972 service treatment records (STRs) confirm that the Veteran fell in service. STRs are silent, however, for complaints of, treatment for, or any diagnosis related to the eyes. A February 2005 VA treatment record indicates that the Veteran had scarring of the corneal stroma at that time. The record also demonstrates that she has current eye diagnoses of nuclear sclerotic cataracts, pseudophakia, and optic nerve pallor in both eyes, and of inferonasal pannus in the left eye. The key issue before the Board is whether there is a nexus, or link, between any of the Veteran’s current eye disabilities and service. For the reasons that follow, the Board finds that the preponderance of the evidence is against a finding that there is a link between the Veteran’s eye disabilities and her service. The Veteran was afforded a VA examination in connection with her claim in February 2016. The examiner noted the Veteran’s contention that she got seeds in her eyes during a training exercise in 1972 and that she had two documented falls in service in January 1972. He found that the Veteran had current diagnoses of nuclear sclerotic cataracts in both eyes and eyelid edema. The examiner offered a negative nexus opinion as to the Veteran’s cataracts, finding that there was no sign of traumatic cataracts from any falls occurring in January 1972. He stated that cataracts caused by blunt trauma classically form stellate, or rosette-shaped posterior axial opacities, and that the only cataract that was in evidence was age-related and that the Veteran’s presentation was age-appropriate. He added that no STRs or other eye examination had noted traumatic cataracts. The examiner also offered a negative nexus opinion as to the eyelid edema, noting that the Veteran fell and hit her eyebrow on a concrete floor in January 2016, and that examination revealed no ocular contusion and healthy retinas in both eyes, with only mild eyelid swelling of the right eye. He stated that there was mild resolving eyelid edema from the fall the Veteran suffered in January 2016 per eye clinic notes. The examiner also opined that it was less likely than not that getting seeds in her eyes had caused any ocular surface, corneal, or retinal health issues in either eye, as there was no corneal scarring or residuals from any past incident, there were no abrasions, and the ocular surface was intact in both eyes. Because the February 2016 examiner did not address the February 2005 VA treatment record showing a corneal scar, the Veteran was afforded a second VA examination in October 2019. The examiner reviewed the record and found that the Veteran had current diagnoses of bilateral pseudophakia and optic nerve pallor, and inferonasal pannus in the left eye. He also acknowledged that the Veteran had previously had bilateral cataract surgery. He noted the Veteran’s report that she got seeds in her eyes in service and had corneal abrasions, also noting that he was unable to document that event other than by the Veteran’s personal history. The examiner stated that he did not see a corneal stromal scar in either eye on examination and indicated that the corneal problems had resolved. The examiner then found that the Veteran had no residuals from the corneal abrasions due to getting seeds in her eyes in 1972 while she was in the military. He also opined that the Veteran’s bilateral pseudophakia and optic nerve pallor had no etiological relationship and were unrelated to the Veteran’s claimed bilateral eye scratches with residual vision problems. He also indicated that he reviewed the February 2005 record documenting a corneal stroma scar and the February 2016 VA examination, but opined that it was less likely than not that any of the Veteran’s current eye disabilities were incurred in or caused by service. He reasoned that cataracts and optic nerve issues were age related and diabetic related and would not be related to any in-service event or disease, and that the optic neuropathy was more likely related to ischemia secondary to small vessel disease seen in diabetes. He concluded that he reviewed the records and that there was no event, disease, or trauma experienced while the Veteran was in the military that would have a relationship to her current eye issues. The Board finds the opinions of the February 2016 and October 2019 VA examiners highly probative and assigns them significant weight. The opinions were based on review of the Veteran’s record including her reports, the medical record, and their examinations. Their findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). While the February 2005 VA treatment record indicates that the Veteran had a corneal stroma scar at that time, both the February 2016 and October 2019 examiners found no evidence of any abrasion or scar on their examinations, and the October 2019 examiner specifically considered the February 2005 record but found that any corneal abrasion or scar had resolved, inasmuch as none was present on current examination. The Board finds that the competent and probative evidence demonstrates that it is more likely than not that the Veteran has not had a corneal scar at any time during the pendency of the appeal, and that none of her current eye disabilities are etiologically related to any event or injury she experienced in service, to include getting seeds in her eyes or falling in January 1972. There are no other medical opinions of record, or any other medical evidence suggesting a link between the Veteran’s eye disabilities and her service. Additionally, the Board notes that while the Veteran is competent to report symptoms she experiences firsthand, to include getting seeds in her eyes and falling in service, a determination as to whether any current eye disabilities are related to those events is a complex matter requiring medical expertise. See Jandreau, supra (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, there is no suggestion on the record that she has the specialized training or experience necessary to offer a competent opinion on such a matter. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. 2. Service connection for residuals of a traumatic brain injury (TBI) The Veteran contends that she has residuals of a TBI that were incurred in or caused by service. Specifically, she testified at her November 2014 hearing that she was pushed down a flight of stairs in service in January 1972, injuring her head and losing consciousness for 25 minutes. She also testified that a lieutenant hit her in the head with a large dictionary in service. As an initial matter, the Board notes that in a July 1988 VA treatment record, the Veteran denied any alcohol or drug problems, but the provider noted that in older records she had reported alcohol abuse and a history of blackouts. In a May 1992 VA treatment record, the Veteran reported that she had had a blackout episode the previous month and that she had had a history of blackouts since 1972 in the military but that they went away in 1987 when she stopped alcohol abuse. She also reported that since 1987 the blackouts had occurred one time every 2 to 3 months, until a month prior to the May 1992 examination, when the occurrences were daily. The Veteran also underwent a TBI evaluation in March 2010. The examiner diagnosed mild TBI by history, noting that the Veteran’s cognitive problems were likely multi-factorial inasmuch as the Veteran had vascular dementia risks, a history of mental illness, and medications that could contribute, as well as a family history of dementia. The Veteran was afforded a VA examination in connection with her claim in February 2016. The examiner found that the Veteran did not have and never had had a TBI or any residuals of a TBI. She noted the Veteran’s report of an in-service injury after being pushed down stairs and cited to STRs showing that the Veteran fell in service, but stated that there was no mention of head trauma in any of the STRs. She also noted the Veteran’s contention that she was hit in the head with a large dictionary but stated that there was no documentation available for review regarding that incident. The examiner cited to the March 2010 record diagnosing mild TBI based on reported exposure, but stated that it did not appear that any supporting medical documentation was available for review. She continued that on her review, STRs were silent for any head injury during service. The examiner offered a negative nexus opinion, reasoning that in review of the VA treatment records, a staff psychiatrist concluded that the Veteran did not sustain a TBI and could not associate the Veteran’s history of headaches, seizures, and tardive dyskinesia with head trauma. The Veteran underwent a VA examination for PTSD in February 2017. That examiner also stated that no TBI diagnosis was identified. The Veteran was afforded a second VA examination in connection with her claim in November 2019. The examiner indicated that he was a physiatrist and that he reviewed the record. He found that the Veteran did not have a TBI. He noted the Veteran’s report of being pushed down a flight of stairs backwards in January 1972, hitting her head and losing consciousness for about 25 minutes, and developing headaches and pseudo-seizures immediately after the accident. The examiner cited the findings of brain MRIs in February 1992, November 1992, October 2009, October 2012, and October 2013. The examiner noted that the Veteran had been diagnosed with schizoaffective disorder with schizophrenia and neurocognitive disorder due to multiple etiologies. While acknowledging that the Veteran has cognitive problems, the examiner opined that they were not residuals of TBI, and that they were more likely than not related to her psychiatric diagnoses, as well as the volume loss and ischemic changes shown on several MRI scans of the brain. He also stated that the Veteran’s subjective symptoms of headaches were not residuals of TBI since there was no diagnosis of TBI, and that none of the VA criteria for a diagnosis of TBI applied. He continued that there was no documentation of any posttraumatic amnesia, loss of consciousness, alteration of consciousness, neurological deficit after the event, or any intracranial lesion after the event. The November 2019 examiner offered a negative nexus opinion, reasoning that the Veteran’s medical records did not support that she sustained a TBI during her fall down stairs in 1972 or that she was hit in the head with a large dictionary. He also noted that during the Veteran’s discharge examination in June 1972 she denied headaches, dizziness, loss of memory, and other neurological problems. The examiner also addressed the March 2010 treatment record showing a diagnosis of mild TBI, but noted that no supporting documentation was available at the time of that evaluation, and that a diagnosis of mild TBI was therefore given based on history alone. He further stated that there was no contention of headaches, blackouts, or memory problems until several years after the claimed in-service incident. The Board finds the opinions of the February 2016 and November 2019 VA examiners highly probative and assigns them significant weight. The opinions were based on review of the Veteran’s record including her reports, the medical record, and their examinations. Their findings are consistent with the record and supported by a thorough rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). The February 2017 PTSD VA examiner also found no evidence of a TBI diagnosis. While the March 2010 record indicates that the Veteran has a diagnosis of mild TBI, both the February 2016 and November 2019 VA examiners cited to that record and explained that the diagnosis was made by history alone, and that it was not supported by any documentation. The competent and credible evidence supports a finding that the Veteran does not have a TBI or any residuals of a TBI. There are no other medical opinions of record, or any other medical evidence suggesting that the Veteran has a TBI or TBI residuals. In order for service connection to be established, there first needs to be competent evidence of a current disability. As noted above, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer, supra. While the Veteran is competent to report what she experiences firsthand, to include hitting her head in service after falling down stairs and being hit in the head with a dictionary, a determination as to whether those events caused a TBI or TBI residuals is a complex matter requiring medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). Here, as noted previously, there is no suggestion on the record that she has the specialized training or experience necessary to offer a competent opinion on the matter. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim. The benefit of the doubt rule is not for application, and the appeal of this issue must be denied. 38 U.S.C. § 5107(b); Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right and left knee disabilities, is remanded. The Veteran contends that her lumbar spine disability was incurred in or caused by service. Specifically, she contends that she injured her lumbar spine when she was pushed down a flight of stairs in service in January 1972. She also contends that the disability is secondary to her service-connected knee disabilities. The Veteran was afforded a VA examination in connection with her claim in February 2010. The examiner diagnosed lumbar spine intervertebral disc syndrome (IVDS) with degenerative arthritis changes. He offered a negative nexus as to whether the disability was secondary to the Veteran’s knee disabilities, stating that the condition as related to the knees could not be determined because there were no medical records from 1972 attached in which the Veteran reported the initial injury. The Veteran was afforded a second VA examination in January 2016. The examiner diagnosed degenerative arthritis of the spine and degenerative joint disease (DJD) of the lumbosacral spine. He offered negative nexus opinions as to both direct and secondary service connection for several reasons. The first was that examination of the back was normal and that x-rays showed minimal DJD consistent with the Veteran’s age; the second was that while there was evidence of two episodes of back pain in service the Veteran did not get continuing treatment for them which indicated that the condition resolved; the third was that there was no evidence that the Veteran had continuing back pain on leaving service; the fourth was that her current back condition was consistent with her age; and the fifth was that examination of the knees showed equal limb lengths and that the Veteran walked without a limp. He opined that given those examination findings, the knees would not apply stresses to the back to lead to DJD or to aggravate the Veteran’s back condition. In its February 2019 remand, the Board found that the January 2016 VA examiner did not adequately address the Veteran’s lay statements. It directed the AOJ to afford the Veteran a new VA examination, and specifically instructed the examiner to address the February 2010 and January 2016 VA examination reports. It also instructed the examiner to provide nexus opinions as to direct and secondary service connection, and to specifically address the Veteran’s in-service fall in January 1972 and the Veteran’s lay statements regarding complaints of back pain due to a fall in service, complaints of chronic back pain in 1985 and 1986, and any altered gait or limp in providing the requested opinions. Following the Board’s remand, the Veteran was afforded another VA examination in November 2019. The examiner found that the Veteran had current diagnoses of degenerative disc disease, sacroiliac DJD, and lower extremity radiculopathy. He noted that the Veteran went down a flight of stairs backwards in 1972 and hit her head on the wall and that it threw her back onto the handrail. The examiner stated that he reviewed the February 2010 and January 2016 VA examination reports, but stated that there was nothing to address. The examiner offered a negative nexus opinion regarding direct service connection, reasoning that while the Veteran had reported being diagnosed with chronic back pain and that the condition had existed since January 1972, the Veteran’s June 1972 discharge examination did not document any complaints related to the back, and no treatment records were seen and reviewed that were dated during active service. The examiner also offered a negative nexus opinion regarding secondary service connection. Regarding causation, he reasoned that the Veteran’s knee surgeries were performed in 2003 for the left knee and 2004 for the right knee, and that the back condition existed prior to the operative procedures. Regarding aggravation, he reasoned that while diagnostic examinations revealed progression of the lumbar condition, that did not substantiate that the knee conditions caused the aggravation. He opined that a back condition could affect the knees but not the other way around, and that DDD was caused by everyday wear and tear and was a common condition for an elderly person that could occur regardless of knee conditions. The Board finds the November 2019 VA examination inadequate for at least three reasons. First, and most importantly, even when specifically asked to address the Veteran’s lay statements regarding complaints of back pain due to a fall in service, complaints of chronic back pain in 1985 and 1986, and any altered gait or limp, the examiner failed to do so, and merely repeated his previous rationale without commenting on those specific statements. The examination therefore does not substantially comply with the Board’s February 2019 remand directives. See Stegall, supra. Second, while the examiner stated that he reviewed the February 2010 and January 2016 VA examination reports, it does not appear that he did so fully, inasmuch as those examinations both noted diagnoses which differed from those found by the November 2019 VA examiner and he made no attempt to reconcile their findings with his own. Third, the examiner’s opinion that the Veteran’s lumbar spine disability was not caused by her knee disabilities because it was present prior to when the Veteran underwent knee operations is illogical. The claims file indicates that the Veteran has been service connected for her left knee disability since January 1984 and for her right knee disability since January 1999. While she did not undergo knee replacement surgeries until 2003 and 2004, the claims file makes clear that she has had problems with her knees since well before her surgeries. Her knee disabilities could therefore have at least potentially caused a lumbar spine disability prior to the surgeries as well. Under the circumstances, a new VA opinion is warranted. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). This matter is REMANDED for the following action: 1. Arrange to have the Veteran scheduled for a VA examination to determine the nature and etiology of any lumbar spine disabilities. The examiner must review the claims file and should note that review in the report. The examiner should obtain a complete history from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. The examiner must address and the February 2010 and January 2016 VA examination report. All findings should be reported in detail. The examiner should provide the following information: (a.) Diagnose all lumbar spine disabilities found. (b.) Is it at least as likely as not (i.e., is it 50 percent or more probable) that any lumbar spine disorder was caused by or is related to service? The examiner should specifically address the Veteran’s in-service fall in January 1972. The examiner should specifically address the Veteran’s lay statements regarding complaints of back pain due a fall in service, complaints of chronic back pain in 1985 and 1986, and any altered gait and limp. (c.) Is it at least as likely as not that any lumbar spine disability is proximately due to or the result of any service-connected disabilities, to specifically include the right and left knee disabilities? The examiner should specifically address the Veteran’s lay statements regarding complaints of back pain due to a fall in service, complaints of chronic back pain in 1985 and 1986, and any altered gait and limp. (d.) Is it at least as likely as not that any lumbar spine disability has been aggravated (i.e., worsened beyond its natural progression) by any service-connected disabilities, to specifically include the right and left knee disabilities? The examiner should specifically address the Veteran’s lay statements regarding complaints of back pain due to a fall in service, complaints of chronic back pain in 1985 and 1986, and any altered gait and limp. A complete medical rationale for all opinions expressed must be provided. 2. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Oldroyd, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.